PORTLAND, OREGON – As the Portland Police Bureau grapples with how to update its Taser policy, two federal lawsuits stemming from inappropriate Taser use suggest some city police aren’t familiar with the current restrictions on their use.

The city settled both lawsuits, paying a total of $138,073 to two men who were Tased by police after they had surrendered. In each incident, the men were on their knees with their hands locked behind, or on their heads when they were tased.

One man’s back was to the officer when he was shot with no warning, an arbitrator found based on witness statements, although the officer said she had shot him in the stomach.

Both men were charged with misdemeanors ranging from interfering with police to harassment. Separate juries cleared both of them and some charges were dismissed.

The officers violated bureau policy by using the Taser against people who were “passively resisting,” according to testimony from the criminal trials and civil depositions. But no discipline was issued.

Portland attorney Matthew McHenry represented both men in their lawsuits.

“These cases exemplify why law enforcement needs new and better training on Taser use,” McHenry said. “They both struck me as a case in which the Taser was used against people who were not a threat.”

Portland’s current policy — which allows police to use a Taser when someone physically resists or displays the intent to physically resist – is more permissive than other cities’ and model guidelines. The city auditor’s office has recommended a more restrictive policy.

A federal appeals court ruled in December that police can be held liable for using a stun gun against an unarmed person who poses no immediate threat. Deputy City Attorney Dave Woboril said that Portland’s current guidelines on Taser use are not precise enough and need to be improved to better guide officers.

In late January, the city paid $81,766to settle a federal civil rights suit filed by Hung Minh Tran, a commercial insurance broker, against Officer Jennifer Thompson.

The settlement came after a stinging rebuke from an arbitrator, who found that the officer’s sworn testimony conflicted with that of four witnesses and Tran.

reese.jpgThe OregonianChief Mike Reese“Officer Thompson denies deploying her Taser against Tran while he was on his knees, facing away from her, but based upon the testimony of several witnesses, I find that she did,” arbitrator Alan Bonebrake wrote, adding she deployed probes into Tran’s back.

“This was unnecessary, unreasonable and an excessive use of force,” he wrote. Tran proved he was deprived of his civil rights from the use of the Taser, assault and Thompson’s negligence, the arbitrator found.

The encounter between Tran and Thompson happened Nov. 24, 2007 when the officer responded to the report of a woman assaulted at the Cheerful Tortoise bar, near Portland State University.

When Thompson arrived, the victim and her boyfriend were outside. As the officer was talking to them, Tran stepped out of the bar. The boyfriend accused some of Tran’s friends of being involved in the assault, and two began arguing.

Thompson ordered Tran back into the bar. Tran admitted that at first he refused in order to defend his friends, who the boyfriend claimed were involved. “He says it wasn’t me. It wasn’t my friends, then goes back in,” Tran’s attorney told jurors.

The officer testified that Tran pushed her and then went inside. She followed to arrest him. Thompson said Tran struggled and knocked her into a stack of chairs.

Tran testified that he didn’t know who was grabbing him from behind, and he struggled to get away. When he realized it was a police officer, he said he complied with Thompson’s requests and she dragged him back outside. He said the officer knocked him into the chairs.

Once outside, the officer’s account drastically differed from Tran and witnesses.

Tran said Thompson was giving him confusing commands, such as go against the wall, back up against the wall, and back away from the wall. He didn’t understand what she wanted so he did what he’s seen on TV: got down on his knees, with his hands locked behind his head, facing away from her, “so I’m not a threat.”

“I did not ever see a Taser. I was not warned about a Taser,” Tran testified. “All I remember is getting Tased in the back, and I didn’t know where that was coming from.”

At the trial, he showed photos of bruises to his back. Police didn’t take photos.

Thompson wrote in her report that once outside with Tran, she pulled her Taser. In her deposition, she said she probably did not warn Tran she was going to fire it, as policy requires. Her report said Tran had his hands up in the air, saying “OK, OK.”

“After the physical contact, twice pushing me, I decided to pull my Taser to get some compliance because he wasn’t complying with me physically. It wasn’t specifically at that second. It was everything to that point.”

Not until her cross-examination did Thompson say anything about drawing her Taser, reholstering it and accidentally firing probes into her holster when she reached to draw it out again. Thompson testified she probably didn’t put the safety on. She testified that Sgt. Cory Roberts told her to leave the accidental discharge out of her report since it wasn’t used against Tran then.

She said she then used the stun gun against Tran’s stomach and handcuffed him.

As a result of their encounter, Thompson never talked to a witness who saw the bar assault she was sent to investigate.

McHenry, who also represented Tran during his criminal trial, argued that Thompson lied on the stand. “She Tased him against her training, and she’s trying to cover for that,” he told a jury, who acquitted his client of disorderly conduct and interfering with an officer.

Woboril said police managers are aware of the settlement.

In her deposition, Thompson said she received a de-briefing from then–Central Precinct Sgt. Kyle Nice. (A police review board this month found he acted inappropriately for drawing his firearm during an off-duty road rage encounter.)

In a confidential memo Nice wrote to then-Precinct Cmdr. Mike Reese, he said the Tran case had caused Thompson anguish, she had reviewed it and would learn from it.

Woboril said he didn’t know if police internal affairs has reviewed the case. If not, the city’s “tort review group will certainly look at that result and see if the bureau needs to open one up.”

Last spring, the city paid out $56,306 to settle a federal suit brought by Christophe Clay, 24, against Officer John Hughes and Michelle Tafoya.

Also on Nov. 24, 2007 coincidentally, Clay had gone to the Game Crazy store in North Portland to buy an XBOX 360 controller. After an argument with a clerk, Clay asked the manager for the business’ corporate number. The business called police.

Officer Michelle Tafoya arrived and saw Clay walk out of the store. She immediately shouted commands and pointed her Taser at him. Officer John Hughes, who responded next, drew his Taser as well. Clay, both said, had his hands on his head.

Hughes testified that he told Clay to go to his knees and turn away from them. Clay got to his knees, kept his hands on his head and turned sideways to the police. “I said they can come and arrest me,” Clay said.

Because Clay would not put his face to the ground or turn fully away from police, Hughes fired his Taser at him twice. Police also threatened to Taser Clay’s friend who was videotaping them. Police said having a suspect lie face to the ground allows for a safer approach for officers.

DALLAS, TEXAS – Dallas Police Chief David Brown said Wednesday that a police officer accused of using excessive force last month has been fired and faces criminal charges.

Former Officer Quaitemes Williams is accused of kicking and spraying mace on Rodarick Dasean Lyles while he was handcuffed during an arrest on Jan. 27.

“The response can’t be, when the suspect is defenseless and handcuffed, to kick a person in the head or even to mace a person. We have to be more professional and more disciplined than that,” Brown said.

Williams, a three-year veteran of the force who was considered a rookie, also faces criminal charges of official oppression, a Class A misdemeanor.

“With this action today, we stand firm in our belief that the integrity of the DPD stands above the actions of a single officer or group or association,” Brown said. “We also ask the public to view our actions as proof that we can and will police ourselves.”

Lyles was on his cell phone with his girlfriend when police pulled him over, said the woman’s mother, Bobbie Denwitty. She said her daughter heard the incident over the phone.

“She didn’t sleep that night,” she said. “It was awful.”

Lyles’ attorney could not be reached for comment Wednesday night.

Police chief says incident began with traffic stop

Brown said Williams became angry after he was injured in a scuffle with Lyles, who fell on Williams’ arm during the altercation.

Officer Hiram Soler stopped Lyles because his plates didn’t match his vehicle, police said. Soler learned that Lyles had a suspended license and had an outstanding warrant for driving without a license.

Williams and Officer Edward Cruz-Done arrived as backup. They tried to arrest Lyles, who resisted. In the scuffle, Lyles, described by Brown as a large man, fell on Williams, pinning his arm.

Brown said Williams then hit Lyles with his fist and a flashlight. Cruz-Done felt hitting Lyles with the flashlight was unnecessary and took it from Williams, Brown said.

Soler used a stun gun on Lyles, and the man was handcuffed while he was on the ground, Brown said.

Brown said the officers tried to calm Williams, whom they described as extremely angry and out of control.

Supervisor sees Williams kick, use mace on suspect

Brown said Williams sprayed mace into Lyles’ face and kicked him in the head once when more backup officers arrived, distracting Cruz-Done and Soler.

Officer Rickey Upshaw, a supervisor, saw Williams kick and spray the mace as he pulled up, Brown said. He then had a verbal argument with Williams about his actions, Brown said.

The chief said Upshaw reported the incident to his supervisors, Brown said.

Sources in excessive-force cases usually wish to remain anonymous, but Upshaw, a 23-year veteran of the department, asked that his name be made public.

Brown praised Upshaw for coming forward.

“One of the things that I really want to express about Officer Upshaw’s action is that we should not as a department ostracize him in any way,” Brown said. “We should applaud him coming forward, him intervening. We should applaud Officer Solan, Officer Cruz-Done for pushing Officer Williams away, taking the flashlight away.”

Williams charged with official oppression

Following his termination Wednesday, Williams was arrested and transported to the Dallas County Jail.

Williams was released later Wednesday. If convicted of official oppression, he faces up to a year in jail.

“Official oppression occurs when a public servant acting under the color of his office or employment intentionally subjects another to mistreatment,” Brown said.

Brown said the department had also contacted the civil rights division of the FBI about the case.

Soler received a sustained allegation of entering inaccurate, false or improper information on a police report. Soler, who has been with the Dallas Police Department for almost three years, was disciplined with a 10-day suspension.

Goodwin was ordered not to have any contact with her son and not to possess a gun. Her son’s identity and age were not released, and it’s not clear who is caring for him.

The Sheriff’s Office placed Goodwin, who has been a deputy since November 2009, on administrative leave. She was relieved of all law enforcement authority, and her department-issued weapon, credentials and other equipment have been taken from her, Welborn said.

Goodwin was arrested after the Sheriff’s Office was called to the 3600 block of Charmeine Drive.

The mother got into a dispute with her son about his going out without her permission, according to a Sheriff’s Office report.

Goodwin is accused of trying to hit her son on the leg with her baton. He blocked the baton and received injuries to his right forearm and wrist.

PALM BEACH COUNTY, FLORIDA – A Palm Beach County Sheriff’s Office civilian accident investigator driving a marked van won’t be disciplined, even though traffic investigators ruled she failed to yield the right of way when she struck a woman on a motorized scooter last summer, according to the Sheriff’s Office.

On July 6, Barbara Guyton, then 68, of West Palm Beach, was crossing Indian Drive at Westgate Avenue when a van driven by Gerlienus Marie Hester, then 44, turned left from Westgate onto Indian and struck Guyton, according to a Sheriff’s Office report.

Palm Beach County traffic investigators determined in August that Hester failed to yield to Guyton, but Hester was not given a ticket.

HAMILTON TOWNSHIP, NEW JERSEY – On the night he was charged with drunken driving, Hamilton Township Deputy Mayor Charles Cain pleaded for “professional courtesy” from the arresting officer, saying he was the “designated driver,” according to a police report obtained by The Press of Atlantic City through an Open Public Records Act request.

“Come on, you and I both know I’m gonna blow over the limit, how about a little professional courtesy,” Cain reportedly told the arresting officer after being taken to the police station for a breath test and processing. “Come on, it’s not like I was hurting anyone. I was the designated driver. I was just trying to drive them home.”

Cain also said, “I can’t believe you’re going to do this to me. I can’t believe you’re going to hang me out there like this,” according to a report of the motor vehicle stop.

Cain was arrested early Jan. 22 on Clarksville Road, just a few blocks from his Mays Landing house. The arrest came five days after Hamilton Township Committee began the process of laying off 20 percent of the municipal government, including, at the time, 11 police officers.

The Press of Atlantic City also requested a copy of Cain’s arrest video, but Cain’s lawyer, Louis Barbone, has filed a motion in state Superior Court to block the release. A hearing on that matter is scheduled for Friday. Cain said he could not comment on the report when reached by a reporter, but said “we will have our opportunity to put on our defense.”

In the police report, Officer Peter Burns stated that he was monitoring Clarktown Road for drunken drivers because it is “known as an alternative route for motorists attempting to avoid police patrols on Route 559 (Mays Landing-Somers Point Road.)” Burns stated that a vehicle with its high beams on traveled across the middle line and was heading directly at his patrol car. “I began preparing to avoid an impact when the vehicle veered right, back toward its side of the road.”

Burns then clocked the SUV at 40 mph in a 25 mph zone and pulled it over, the report says. When he asked Cain for identification, “the driver opened his wallet and displayed a gold badge along with his driver’s license, stating ‘right here,'” the report stated. Burns “detected a strong odor of alcoholic beverages emanating from his breath as he spoke.” Cain said he had been at Testa’s Good Guys Pub and had consumed three beers. Also in the car were two women, including Cain’s wife.

Burns then began administering a field sobriety test. Burns noted that Cain’s speech was slurred and that he lost his balance several times while failing to follow the specific directions of the test. A supervisor, Sgt. Christopher Gehring, arrived at the scene and backed up Burns’ findings. Gehring asked Cain how many drinks he had consumed, to which Cain stated “three Red Bull and Vodkas because he was tired and needed to stay up. He stated that he was the designated driver,” the report said. “He then made a reference to the chief of police before advising us that he was the deputy mayor.”

Cain was placed under arrest and taken to the police station for a breath test and processing, the report stated.

While there, he was asked to blow two samples for the breath test and, after the first, he refused to blow a second, saying “What, the first one was not high enough so you want to get another one? Well, I’m done.” He then told Burns to “shut up” multiple times and stated, “I’ve been working my ass off to save police jobs in this town and this is how you treat me?”

The first reading registered at twice the legal limit, according to documents in the police report, but because two tests were not completed, it’s not a legal reading.

Back at the car, according to the report, another officer, Michael Tantum, stated that the two women were angry about the arrest. Cain’s wife said the arrest was political and that someone called the police after they had left the bar, the report said. The two women then complained about their high taxes, the report stated.

Cain was charged with driving while intoxicated, refusing to submit to a breath test, reckless driving, careless driving and speeding.

His case was moved to Atlantic City Municipal Court, but it has since been sent back to Hamilton Township and is waiting at Superior Court, according to a Hamilton Township Municipal Court clerk.